Legislature(2007 - 2008)BARNES 124
04/04/2007 01:00 PM House RESOURCES
| Audio | Topic |
|---|---|
| Start | |
| HB132 | |
| HB176 | |
| HJR4 | |
| HB194 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 176 | TELECONFERENCED | |
| *+ | HB 194 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 132 | TELECONFERENCED | |
| += | HJR 4 | TELECONFERENCED | |
HB 194-FINES AND OFFENSES 1:59:10 PM CO-CHAIR GATTO announced that the final order of business would be HOUSE BILL NO. 194, "An Act relating to fines for certain offenses involving aeronautics, alcoholic beverages, boats, fish and game, health care records and public health, medical review organizations, public restroom facilities, smoking, shelter cabins, refrigerators and similar equipment, radiation sources, high voltage lines, child labor, employment in underground mines, marriage licenses, motor vehicles and driver's licenses, ignition interlock devices, pipelines, use of the state seal, and emissions requirements; relating to the maximum fine provided for violations and infractions and to the definition of 'minor offenses'; redesignation of certain fish and game misdemeanor offenses as class A misdemeanors; relating to violations and offenses that are committed on state land, water, and land and water or that are related to water management or dam and reservoir safety; amending Rule 8(b), Alaska District Court Rules of Criminal Procedure; and providing for an effective date." 1:59:29 PM HEATH HILYARD, Staff to Representative Carl Gatto, Alaska State Legislature, presented the sponsor statement on behalf of the House Resources Standing Committee. He explained that HB 194 is a re-introduction of HB 384 from the Twenty-Fourth Alaska State Legislature. It is a collaboration between the Department of Public Safety (DPS), the Alaska Department of Fish & Game (ADF&G), and the Department of Natural Resources (DNR). Originally, HB 384 simply updated fines and fees associated primarily with non-criminal violations and infractions throughout statute. In the course of drafting HB 194, the Department of Law and Legal Services advised that the bill needed to comport all sections of statute that had like-type fines for noncriminal violations in order to prevent any potential constitutional conflicts with disparity and prosecution. This is what contributes to the length of the bill, he said, but in reality it is quite similar [to HB 384]. It is just conforming amendments to update fines from $500 to $750 for these noncriminal violations and infractions. MR. HILYARD noted that a second difference between the previous bill and HB 194 is that ADF&G has requested the legislature to also consider updating the fine structure for class A misdemeanors associated with various crimes under fish and game statutes. The Twenty-Third Alaska State Legislature updated fines associated with class A misdemeanors from $5000 to $10,000; however, in the course of that some of the ADF&G statutes were not updated to incorporate that increase. Thus, there are several sections in the bill that deal with AS 16. MR. HILYARD lastly explained DNR's involvement in the bill. When the Twenty-Fourth Alaska State Legislature created the Knik River Public Use Area, DNR was granted enforcement and penalty authority over those lands specifically. It was brought to Representative Gatto's attention that DNR would like to have that type of penalty and enforcement authority for all of the lands it oversees. This authority is provided under Section 37 of the bill, thus giving DNR a tool to address people who are misusing public lands. Section 43 is a conforming amendment that repeals enforcement of the Knik River Public Use Area because Section 37 now gives DNR the broad authority over all state lands. 2:03:35 PM AL CAIN, Criminal Justice Planner, Statewide Enforcement Specialist, Division of Sport Fish, Alaska Department of Fish & Game (ADF&G), said he does not have any specific testimony as Mr. Hilyard covered ADF&G's concerns, but that he is available to answer any specific questions regarding Sections 6-18 in the bill. REPRESENTATIVE SEATON asked whether the provision of Section 9, which changes the language to "guilty of a class A misdemeanor", is another way of saying "punishable by a fine of not more than $10,000, or imprisonment for not more than six months" for the wanton waste of salmon. MR. CAIN said correct. At the beginning of statehood there were not class A and class B misdemeanors, they were just called misdemeanors. Therefore, this would bring the wanton waste of salmon into alignment with all the others and make them standard class A misdemeanors [punishable by] up to a year in prison and up to a $10,000 maximum fine. 2:06:12 PM REPRESENTATIVE SEATON referred to Section 37, page 9, line 13, which would provide that an authorized state employee can arrest or issue a citation under the enforcement authority of AS 38.05.755. Does this mean the employee can arrest somebody, he asked, because most of the bill is about increasing the fines from $500 to $750 and Section 42 defines minor offense. MR. HILYARD read from page 9, line 9, of the bill regarding penalties under AS 38.05.750: "A person who violates a provision of this chapter or regulation adopted under this chapter, AS 41.23, AS 46.15, or AS 46.17, for which another penalty is not specifically provided is guilty of a class B misdemeanor ...." He said what would constitute a class B misdemeanor under this section would have to be answered by DNR. 2:08:10 PM REPRESENTATIVE GUTTENBERG noted that under its new authority DNR would have the ability to enlist ADF&G's efforts in enforcing DNR regulations. He inquired whether this would cause any conflicts for ADF&G or result in requests for which ADF&G did not have the authority or training. MR. CAIN said he does not see any conflict with the mission of ADF&G, which is mainly management and research. Many ADF&G biologists have law enforcement commissions for those times when they encounter a serious offense in the field or are informed by the public of something that is in progress. He said that ADF&G biologists are not the primary enforcers in the state, rather it is the folks in the new Division of Alaska Wildlife Troopers under the Department of Public Safety. There is a great deal of merit in giving DNR law enforcement authority over their lands, he said, because under current law there are no criminal penalties even if the troopers are called in, there are only civil remedies currently available to DNR. This would just enhance DNR's abilities at enforcement and would not conflict with or shortchange the missions of DPS or ADF&G. In further response to Representative Guttenberg, Mr. Cain said he understood that DNR personnel, not ADF&G personnel, would be trained and commissioned for enforcement on DNR lands. STEVE ARLOW, Captain, Commander, C Detachment, Division of Alaska State Troopers, Department of Public Safety (DPS), explained that for any enforcement issues falling outside of civil remedies, DNR would call DPS and DPS would be the uniformed entity that would do the enforcement due to the training necessary. For civil issues, DNR deals with it civilly. 2:11:34 PM REPRESENTATIVE SEATON noted that under Section 37, [page 9,] lines 18-26, an authorized employee of DNR would have the power to arrest or issue a citation to a person who violates a provision of this chapter or a regulation adopted under this chapter. Do the police authorities feel that this is an appropriate amount of authority for an employee of DNR, he asked. CAPTAIN ARLOW stated that this is a very valid concern and that this is how he reads Section 37, as well. He said ADF&G has always had language in its regulations similar to this and on issues that it feels uncomfortable with, ADF&G has always deferred to DPS. There are ADF&G biologists who have police authority with full arrest authority. However, he said, he is unsure whether DNR has ever had this. 2:13:54 PM WYN MENEFEE, Chief of Operations, Central Office, Division of Mining, Land and Water, Department of Natural Resources (DNR), addressed the issue of whether DNR has had this authority before and what is DNR's intent with that authority. He said the Division of Parks & Outdoor Recreation has statutes that are almost identical to this that give the authority to issue citations, make arrests, and become peace officers of the state for the purposes spelled out in the statutes. Thus, DNR has wielded this authority before. The parks division has a full training program and any peace officer that is enforcing those statutes and regulations must go through the training process. The Division of Mining, Land and Water is not intending to set up a whole separate armed enforcement staff, he said. It would create a program to train and commission certain staff for writing citations and issuing fines for certain offenses, but the intent is not to issue this power to every employee of the mining division. 2:15:40 PM CO-CHAIR GATTO inquired whether an authorized employee of DNR under the provisions of Section 37, page 9, line 18, would be part of a special group. MR. MENEFEE said correct. The mining division would first have to set up a training criteria that the employees would go through. Once the employees met the training and were approved by the division as being qualified to issue citations, the commissioner would be requested to commission the employees. 2:16:24 PM REPRESENTATIVE SEATON asked whether there is a difference between the training that would be required to issue a citation and the training needed for arresting people. MR. MENEFEE explained that many state and federal agencies have authorities to issue citations, but many do not go to the extent of being able to do felony arrests. The magnitude of the offense often is the determiner, he said. This bill would give DNR the ability to set up bailable offenses, many of them could be down to $50. Interactions with someone doing the offense could be done on a low enough key that training to carry a weapon would not be needed. For instance, the U.S. Forest Service has Level 1 and Level 2 enforcement officer training. If it got to an uncomfortable situation or a more severe offense, DNR would still go to the Alaska State Troopers. He said this also gives the troopers the ability to cite someone for a criminal offense for a DNR regulation, an ability the troopers do not have right now. 2:18:39 PM REPRESENTATIVE SEATON said he is comfortable with the ability to write citations, but uncomfortable with expanding this to authority for arresting, especially since DNR would want a state trooper there for arresting anyway. He asked whether anything in this provision would be lost by eliminating the words "arrest or" under Section 37, page 9, line 26. MR. MENEFEE advised leaving in the word arrest because DNR has park rangers who are already trained to do arrests. If park rangers were commissioned for general state land as well as parks they could help with law enforcement situations. Troopers are oftentimes not available because of higher pressing engagements such as burglaries, he said, so DNR does not want to take away the ability of park rangers to come across and make an arrest when needed. Eventually, DNR may have one or two elect people go through more advanced training. The state troopers do not have enough staff to cover the whole state all the time and DNR would like to be able to depend on itself "to handle some of the upper end stuff." 2:21:16 PM REPRESENTATIVE GUTTENBERG shared Representative Seaton's concern about the ability to arrest. He said he is unsure where this actually ends when the troopers do not have enough resources so DNR then puts its own people into the field. CO-CHAIR GATTO surmised that DNR enforcement personnel would have a badge and an identification card so that when they approached a violator they would have a certain amount of authority as a DNR official. If the violator objects to the DNR official, then the violator could be offered the state troopers. REPRESENTATIVE GUTTENBERG reiterated that he is unsure because he did not want to end up with a DNR police force. DICK MYLIUS, Director, Central Office, Division of Mining, Land and Water, Department of Natural Resources (DNR), stated that it is not DNR's intention to have a police force. He said DNR does want to have the ability to rely on its existing forces if necessary, and this is the reason for that provision. 2:23:21 PM REPRESENTATIVE SEATON inquired whether Mr. Mylius is saying that DNR needs to have the authority for its employees to arrest somebody or to have the troopers arrest somebody. MR. MYLIUS responded that this would give the authority to the employees of DNR and it would also give that authority to police officers and park rangers as it relates to the DNR regulations. 2:24:02 PM REPRESENTATIVE SEATON understood that what Mr. Mylius is saying is that DNR needs this authority to make arrests in order for police officers of the state to be able to enforce DNR regulations. MR. MYLIUS replied that, as it relates to state park rangers, this is true. 2:24:40 PM CO-CHAIR GATTO understood that what is being asked of the committee is to create another division of enforcement. He guessed it may be a good idea, but that there would be some resistance to it. CO-CHAIR JOHNSON said his concern is that in order to enforce laws and arrest people, the enforcement official will be armed. The broadness and lack of direction are concerning. He said he would like to see stricter control. 2:26:01 PM CO-CHAIR GATTO asked whether handcuffs and weapons will be involved for this enforcement. MR. MYLIUS responded that this is not the intention for the folks within the Division of Mining, Land and Water. The intention is that these folks would only have the authority to issue citations, and any arrests, if necessary, would be by the troopers or a state park ranger. 2:26:30 PM CO-CHAIR GATTO surmised that the purpose of the training is to handle citation situations where there is no enforcement device such as a gun or handcuffs. MR. MYLIUS said the problem right now is that DNR has no authority other than to tell people to stop what they are doing and to get the attorney general's office to send a letter that tells the violator to stop which is not effective in terms of in-the-field enforcement. Primarily, DNR is looking for the citation authority by Division of Mining, Land and Water employees. The arrest is a backup for those circumstances where it is necessary, but DNR is envisioning that somebody else would be doing that for the department. 2:27:47 PM CO-CHAIR GATTO asked whether Village Public Safety Officers (VPSO) are armed. MR. MYLIUS answered that he is unsure what authority VPSOs have. CO-CHAIR GATTO said he is asking the question to determine whether there are enforcement officials who do not have weapons and must call in other authorities with police power when the situation warrants. MR. MYLIUS said he believes this is the kind of authority that the ADF&G employees have. BURKE WALDRON, Lieutenant, Central Office, Division of Alaska Wildlife Troopers, Department of Public Safety (DPS), stated that VPSOs are not armed. In response to further questions from Co-Chair Gatto, Lieutenant Waldron said that VPSOs investigate misdemeanor crimes and respond in a type of first responder capacity to emergencies. The VPSOs handle the situation and preserve the evidence until troopers can arrive on scene. Lower misdemeanors ....(indisc.--online microphone failure). 2:30:37 PM REPRESENTATIVE ROSES inquired whether a VPSO has arresting authority under current regulations LIEUTENANT WALDRON answered, "Yes, they do." In further response to Representative Roses, Lieutenant Waldron confirmed that when a trooper is present but unable to provide assistance due to injury, the VPSO does have arrest authority. He said VPSOs often make arrests for such things as driving under the influence (DUI) and misdemeanor domestic assaults. 2:32:21 PM REPRESENTATIVE ROSES asked whether a DNR employee absent arresting authority could make an arrest in a situation where the employee is accompanied by a trooper, but the trooper for whatever reason becomes disabled and is unable to complete the arrest. LIEUTENANT WALDRON said he is not 100 percent certain of the answer. Troopers have a broad arrest authority, but he would have to research it. REPRESENTATIVE ROSES responded that it is not the trooper he is concerned about, it is the DNR employee. LIEUTENANT WALDRON said he had misunderstood the question. "So you are asking if they took the arrest authority out of this, could DNR still make the arrest if a trooper was not with them." REPRESENTATIVE ROSES replied absolutely. He asked if the arrest would hold up as being proper. LIEUTENANT WALDRON said he did not know. 2:34:13 PM CO-CHAIR GATTO referred to Section 37, page 9, line 26, and noted that the question is in reference to striking the word arrest and limiting it to issuing a citation. This is a major change, he commented. MR. MENEFEE said his understanding is that if it does not say arrest, an employee of the Division of Mining, Land and Water would not be able to arrest somebody. If it only says that the division can issue a citation, then that is all that could be done. He said he could not answer the question of whether the authority is broad enough, but that the troopers may be able to arrest the person for a violation of this. Under current law, a park ranger's commission only allows him or her to make arrests within a state park; there is no authority to make an arrest on general state lands, thus a trooper would have to come in. Because a park ranger is under DNR authority, not under trooper authority, the wording on page 9, line 18, "an employee of the department authorized by the commissioner", would apply to park rangers. Under this language a park ranger's commission could be expanded to enforce AS 38.05 and make an arrest on general state lands because a ranger's training is similar to a state trooper's. But, a park ranger could only arrest if it says "arrest" here [page 9, line 26]. He understood the concern over "arming up" the people of the Division of Mining, Land and Water, but said this is not the intention. 2:36:33 PM MR. HILYARD recognized the department's concern about wanting to retain some degree of enforcement authority. He suggested the possibility of a conceptual amendment "to distinguish that an employee of the department or any other person authorized by the commissioner is authorized to issue a citation, but that the arrest authority ... for this section of statute is retained by a police officer." He said the bill goes to the House Judiciary Standing Committee next and there will likely be similar discussion in that committee. REPRESENTATIVE SEATON inquired whether it would work to take out the words "arrest or" on page 9, line 26, and add a subsection (c) after line 26 that says something like, "a peace officer in the state may initiate arrest of a person who violates a provision of this chapter or the regulations adopted under this chapter." MR. MYLIUS said the proposed conceptual amendment would work for DNR because the department's intent is to have that enforcement authority only for those folks that already have that kind of training. 2:39:21 PM CO-CHAIR GATTO stated that the question is whether to give the commissioner of DNR the ability to authorize someone to make arrests. MR. MYLIUS replied that DNR would like that authority to be available to state park rangers who are already peace officers. It would work if the bill is worded such that the authority to arrest is limited to peace officers. He said the intent is not to give arresting authority to employees of the Division of Mining, Land and Water, but the way the bill is worded now, they could be given that authority. CO-CHAIR GATTO commented that the bill does not say that division employees would be given that authority, it is up to the commissioner to decide who would be given the authority. He asked how significant this part of the bill is to DNR given the difficulties that can arise in getting a state trooper out to the location. 2:41:37 PM MR. MYLIUS stated that it is not that important for the Division of Mining, Land and Water, nor is it even the division's intention, to have that authority vested in its employees. The authority was wanted so that it could be used by people within the department that are existing peace officers, which are state park rangers. Thus, the conceptual amendment where the arrest authority would be limited to those who already have the proper training and authority under other statutes would be fine. CO-CHAIR GATTO surmised that this authority is not needed because there are already people within DNR that have arresting authority. MR. MYLIUS said the difference is that [DNR people with arresting authority] do not have the authority to enforce these regulations on general state lands. Right now, state parks authorities are limited to units of the state park system, so they do not currently have the authority to arrest people for violation of DNR's general land regulations that are adopted under Title 38. 2:43:00 PM MR. CAIN explained how ADF&G manages the exact language that is written in HB 194. Basically, the enforcement language in the bill is a carbon copy of what is in AS 16.05.150-170. At the present time, that language is enforced. All ADF&G biologists were given the authority to arrest by statute promulgated back around statehood. However, ADF&G does not presently have any biologists that are authorized to make an arrest. He said ADF&G has written an enforcement policy prohibiting its employees from making an arrest because of the very topics being discussed by the committee. A one week training course is provided for biologists and it is called an orientation rather than law enforcement training because a person cannot be trained in five days to a proper level to be able to take action against people's constitutional rights as is done in an arrest scenario. No ADF&G biologists have weapons, he said. There are a few biologists who do issue bail citations, but all other law enforcement issues are immediately referred to DPS. 2:45:24 PM REPRESENTATIVE SEATON moved a conceptual amendment as follows: page 9, line 26, after "(3)" delete "arrest or" page 9, after line 27 insert "[subsection (c)] A police officer in the state may initiate arrest of a person who violates a provision of this chapter or regulations adopted under this chapter." CO-CHAIR GATTO objected to the conceptual amendment. Does a police officer not already have that authority, he asked. REPRESENTATIVE SEATON said no, that the testimony is that the police officers, especially the state park rangers, do not have the authority to enforce the DNR regulations. This would give any police officer, including the park rangers that are trained, the ability to initiate that arrest as well as do the citation. 2:46:39 PM MR. MYLIUS noted that a police officer would not include park rangers, so "our preference would be that it would be 'peace officer' as opposed to police officer." REPRESENTATIVE SEATON accepted that as a friendly amendment. MR. MYLIUS, in response to Co-Chair Gatto, said the department thinks the conceptual amendment is okay as proposed. CO-CHAIR GATTO withdrew his objection. There being no further objection, the conceptual amendment was adopted. 2:47:48 PM REPRESENTATIVE ROSES moved to report HB 194, as amended, out of committee with individual recommendations and the accompanying fiscal notes. There being no objection, CSHB 194(RES) was reported out of the House Resources Standing Committee.
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